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Wednesday, October 10, 2012

Code of Criminal Procedure, 1973: s. 438 - Anticipatory bail - Grant of - Appellant was member of a political party - FIR alleging that appellant and his brother instigated their party workers to fire gun shots at the workers of opponent political party which resulted in the murder of one person - Murder took place eight days after the incident of instigation - Application for anticipatory bail by appellant - Rejection of, by the High Court - Sustainability of - Held: Order passed by the High Court not sustainable - Appellant directed to join investigation and in the event of arrest, appellant to be released on bail on his furnishing a personal bond - Judgment of Constitution Bench of the Supreme Court in *Sibbia's case being on the same issue regarding ambit, scope and object of the concept of anticipatory bail u/s. 438 followed - Judicial discipline - Bail - Precedent. ss. 438 and 437 - Power u/s 438, if subject to limitations u/s. 437 - Held: The limitations mentioned in s. 437 cannot be read into s. 438 - Plentitude of s. 438 must be given its full play - Court can impose conditions for the grant of bail - Bail. s. 438 - Anticipatory bail - Grant of, for limited period - Held: Order granting anticipatory bail for a limited duration and, thereafter, directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in *Sibbia's case - When the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case - Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty - s.438 does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted - Courts should not impose restrictions on the ambit and scope of s. 438 which are not envisaged by the legislature - Constitution of India, 1950 - Article 21 - Interpretation of statutes - Legislative intent. s. 438 - Anticipatory bail - Scope and ambit of - Discussed. s. 438 - Anticipatory bail - Grant or refusal of - Exercise of power - Relevant considerations for - Held: Courts should maintain fine balance between societal interest vis- Allowing the appeal, the Court HELD: 1.1 In the instant case, there is a direct judgment of the Constitution Bench of this Court in Sibbia's case dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438 of the Code of Criminal Procedure, 1973. The controversy is no longer res integra. The judicial discipline obliges this Court to follow the said judgment in letter and spirit. The impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside. The appellant is directed to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant would be released on bail. [Paras 151, 152 and 153] [273-H; 274-A-C] 1.2 This Court in the *Sibbia's case laid down the following principles with regard to anticipatory bail: (a) Section 438(1) Cr.P.C. is to be interpreted in light of Article 21 of the Constitution of India. (b) Filing of FIR is not a condition precedent to exercise of power under Section 438 Cr.P.C. (c) Order under Section 438 would not affect the right of police to conduct investigation. (d) Conditions mentioned in Section 437 Cr.P.C. cannot be read into Section 438 Cr.P.C. (e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." (f) Powers are discretionary to be exercised in light of the circumstances of each case. (g) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the Section and suitable conditions should be imposed on the applicant. [Para 119] [261-B-H; 262-A] 1.3 The Constitution Bench in *Sibbia's case comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438 Cr.P.C. In view of the clear declaration of law laid down by the Constitution Bench in *Sibbia's case, it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter, the accused should apply to the regular court for bail, that means the life of Section 438 Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in *Sibbia's case clearly observed that it is not necessary to re-write Section 438 Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 Cr.P.C. granting bail cannot be curtailed. [Paras 133 and 134] [267-C-H; 268-A] *Gurbaksh Singh Sibbia and Ors. vs. State of Punjab (1980) 2 SCC 565 - followed. 2.1 The society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. [Para 3] [221-C-D] 2.2 Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest. It is clear from the statement of objects and reasons that the purpose of incorporating Section 438 in the Code of Criminal Procedure, 1973 was to recognize the importance of personal liberty and freedom in a free and democratic country. On analyzing Section 438 Cr.P.C. the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court. [Paras 14 and 17] [227-B-C; F-H] 3.1 All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why `liberty' is called the very quintessence of a civilized existence. [Paras 42 and 43] [235-H; 236-A-B] 3.2 The term `liberty' may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three factors, harmonious balance of personality, the absence of restraint upon the exercise of that affirmation and organization of opportunities for the exercise of a continuous initiative. `Liberty' generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to `liberty' and freedom is lost. At the same time `liberty' without restraints would mean liberty won by one and lost by another. So `liberty' means doing of anything one desires but subject to the desire of others. [Paras 45, 46 and 47] [236-G- H; 237-A-E] 3.3 In a properly constituted democratic State, there cannot be a conflict between the interests of the citizens and those of the State. The harmony, if not the identity, of the interests of the State and the individual, is the fundamental basis of the modern Democratic National State. Yet the existence of the State and all government and even all law must mean in a measure the curtailment of the liberty of the individual. But such a surrender and curtailment of his liberty is essential in the interests of the citizens of the State. The individuals composing the State must, in their own interests and in order that they may be assured the existence of conditions in which they can, with a reasonable amount of freedom, carry on their other activities, endow those in authority over them to make laws and regulations and adopt measures which impose certain restrictions on the activities of the individuals. [Para 51] [238-D-G] Chambers' Twentieth Century Dictionary; Essays on Freedom and Power by John E.E.D.; Treatise on War and Civil Liberties by M.C. Setalvad; Development of Constitutional Guarantee of Liberty by Rosco Pound; Commentaries on the Laws of England by Blackstone Vol. I, p.134; Constitutional Law by Dicey 9th Edn., pp.207-08 - referred to. 4.1 The Fundamental Rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the State. The inclusion of a Chapter in Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes. [Para 59] [240-E-F] 4.2 Article 21 of the Constitution of India, 1950 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of the Constitution, personal liberty of man is at root of Article 21 and each expression used in Article 21 enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal interpretation in A.K. Gopalan case. But in course of time, the scope of the application of the Article against arbitrary encroachment by the executives was expanded by liberal interpretation of the components of the Article in tune with the relevant international understanding. Thus, protection against arbitrary privation of "life" no longer means mere protection of death, or physical injury, but also an invasion of the right to "live" with human dignity and would include all these aspects of life which would go to make a man's life meaningful and worth living, such as his tradition, culture and heritage. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. [Paras 67, 69 and 71] [242-H; 243-A, D-F, H; 244- A-B] A. K. Gopalan v. The State of Madras AIR 1950 SC 27; Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295; Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248; State of A.P. v. Challa Ramakrishna Reddy and Ors. (2000) 5 SCC 712; Kartar Singh v. State of Punjab and Ors. (1994) 3 SCC 569; Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608; P. Rathinam/Nagbhusan Patnaik v. Union of India and Anr. (1994) 3 SCC 394; Khedat Mazdoor Chetana Sangath v. State of M.P. and Ors. (1994) 6 SCC 260; Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. (1986) 3 SCC 156; Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 - relied on. Bugdaycay v. Secretary of State for the Home Department (1987) 1 All ER 940; R on the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1; R. v. Curr (1972) S.C.R. 889 - referred to. 5.1 The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. [Paras 94 and 95] [252-G-H; 253-A-C] 5.2 It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully co-operating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. [Paras 96] [253-D-E] 6.1 The Constitution Bench in Sibbia's case clearly observed that there is no justification for reading into Section 438 Cr.P.C. the limitations mentioned in Section 437 Cr.P.C. The plentitude of the Section must be given its full play. [Para 98] [253-H; 254-A-B] 6.2 The proper course of action for grant of anticipatory bail ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case. [Para 101] [254-G-H; 255-A-B] 6.3 The court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time. [Para 103] [255-D] 6.4 The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbia's case clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case; and that the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session must be respected. [Para 104] [255-E-F] 7.1 The order granting anticipatory bail for a limited duration and, thereafter, directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's case. [Para 102] [255-C] 7.2 The court which grants the bail also has the power to cancel it according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case. [Para 105] [256-D] 7.3 The restriction on the provision of anticipatory bail under Section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the Constitution. In order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. [Para 107] [256-F-H; 257-A] Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 - relied on. 7.4 Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation. [Para 108] [257-B- C] 7.5 In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non- bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and, thereafter, he has to surrender before the trial court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. [Paras 110 and 111] [257-E-H; 258- A] 7.6 The courts should not impose restrictions on the ambit and scope of Section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period of which an order under this Section could be granted. Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused. [Paras 113, 114 and 117] [258-E-H; 260-G-H; 261-A] 8.1 No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. No attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. [Para 121] [262-F-G] 8.2 The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or the other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. [Para 122] [263-A-H; 264-A-D] 8.3 The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. [Paras 123 and 124] [264-D- F] 8.4 Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. In case, the State considers the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions which are only illustrative and not exhaustive are: (1) Direct the accused to join investigation and only when the accused does not co-operate with the investigating agency, then only the accused be arrested. (2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused. (3) Direct the accused to execute bonds; (4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case. (5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided. (6) Bank accounts be frozen for small duration during investigation. [Paras 127 and 128] [265-D-H; 266-A-C] 8.5 In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer. [Para 129] [266-D] 8.6 The exercise of jurisdiction under Section 438 Cr.P.C. is extremely important judicial function of a judge and must be entrusted to judicial officers with some experience and good track record. Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications. It is imperative for the High Courts through its judicial academies to periodically organize workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they can properly comprehend the importance of personal liberty vis-

"438. Direction for grant of bail to person
apprehending arrest.- (1) Where any person has
reason to believe that he may be arrested on
accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court
of Session for a direction under this section that in the
event of such arrest he shall be released on bail; and
that Court may, after taking into consideration, inter
alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the
fact as to whether he has previously
undergone imprisonment on conviction by a
Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from
justice; and
6

(iv) where the accusation has been made with the
object of injuring or humiliating the applicant
by having him so arrested,

either reject the application forthwith or issue an
interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the
case may be, the Court of Session, has not passed any
interim order under this sub-section or has rejected
the application for grant of anticipatory bail, it shall be
open to an officer in-charge of a police station to
arrest, without warrant, the applicant on the basis of
the accusation apprehended in such application.

(1-A) Where the Court grants an interim order
under sub-section (1), it shall forthwith cause a notice
being not less than seven days notice, together with a
copy of such order to be served on the Public
Prosecutor and the Superintendent of Police, with a
view to give the Public Prosecutor a reasonable
opportunity of being heard when the application shall
be finally heard by the Court.

(1-B) The presence of the applicant seeking
anticipatory bail shall be obligatory at the time of final
hearing of the application and passing of final order by
the Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence
necessary in the interest of justice.

(2) When the High Court or the Court of Session
makes a direction under sub- section (1), it may
include such conditions in such directions in the light
of the facts of the particular case, as it may thinks fit,
including -

(i) a condition that the person shall make
himself available for interrogation by a
police officer as and when required;
7

(ii) a condition that the person shall not,
directly or indirectly,- make any
inducement, threat or promise to any
person acquainted with the facts of the case
so as to dissuade him from disclosing such
facts to the Court or to any police officer;

(iii) a condition that the person shall not leave
India without the previous permission of the
Court;

(iv) such other condition as may be imposed
under sub-section (3) of section 437, as if
the bail were granted under that section.

(3) If such person is thereafter arrested without
warrant by an officer in charge of a police station on
such accusation, and is prepared either at the time of
arrest or at any time while in the custody of such
officer to give bail, he shall be released on bail, and if a
Magistrate taking cognizance of such offence decides
that a warrant should issue in the first instance
against that person, he shall issue a bailable warrant
in conformity with the direction of the Court under
sub-section (1)."

"The suggestion for directing the release of a person on
bail prior to his arrest (commonly known as
"anticipatory bail") was carefully considered by us.
Though there is a conflict of judicial opinion about the
power of a court to grant anticipatory bail, the
majority view is that there is no such power under the
existing provisions of the Code. The necessity for
granting anticipatory bail arises mainly because
sometimes influential persons try to implicate their
rivals in false cases for the purpose of disgracing them
or for other purposes by getting them detained in jail
for some days. In recent times, with the accentuation
of political rivalry, this tendency is showing signs of
steady increase. Apart from false cases, where there
are reasonable grounds for holding that a person
accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems
no justification to require him first to submit to
custody, remain in prison for some days and then
apply for bail."

The Law commission recommended acceptance of the

suggestion.

13. The Law Commission in para 31 of its 48th Report (July,

1972) made the following comments on the aforesaid clause:
9

"The Bill introduces a provision for the grant of
anticipatory bail. This is substantially in accordance
with the recommendation made by the previous
Commission. We agree that this would be a useful
addition, though we must add that it is in very
exceptional cases that such a power should be
exercised.
We are further of the view that in order to ensure
that the provision is not put to abuse at the instance
of unscrupulous petitioners, the final order should be
made only after notice to the Public Prosecutor. The
initial order should only be an interim one. Further,
the relevant section should make it clear that the
direction can be issued only for reasons to be
recorded, and if the court is satisfied that such a
direction is necessary in the interests of justice.
It will also be convenient to provide that notice of
the interim order as well as of the final orders will be
given to the Superintendent of Police forthwith."

14. Police custody is an inevitable concomitant of arrest for

non-bailable offences. The concept of anticipatory bail is that a

person who apprehends his arrest in a non-bailable case can

apply for grant of bail to the Court of Sessions or to the High

Court before the arrest.

Scope and ambit of Section 438 Cr.P.C.

15. It is apparent from the Statement of Objects and Reasons

for introducing section 438 in the Code of Criminal Procedure,

1973 that it was felt imperative to evolve a device by which an

alleged accused is not compelled to face ignominy and disgrace
10

at the instance of influential people who try to implicate their

rivals in false cases.

16. The Code of Criminal Procedure, 1898 did not contain any

specific provision corresponding to the present section 438

Cr.P.C. The only two clear provisions of law by which bail could

be granted were sections 437 and 439 of the Code. Section 438

was incorporated in the Code of Criminal Procedure, 1973 for the

first time.

17. It is clear from the Statement of Objects and Reasons that

the purpose of incorporating Section 438 in the Cr.P.C. was to

recognize the importance of personal liberty and freedom in a

free and democratic country. When we carefully analyze this

section, the wisdom of the legislature becomes quite evident and

clear that the legislature was keen to ensure respect for the

personal liberty and also pressed in service the age-old principle

that an individual is presumed to be innocent till he is found

guilty by the court.

18. The High Court in the impugned judgment has declined to

grant anticipatory bail to the appellant and aggrieved by the said
11

order, the appellant has approached this Court by filing this

appeal.

19. Mr. Shanti Bhushan, learned senior counsel appearing for

the appellant submitted that the High Court has gravely erred in

declining the anticipatory bail to the appellant. He submitted

that section 438 Cr.P.C. was incorporated because sometime

influential people try to implicate their rivals in false cases for

the purpose of disgracing them or for other purposes by getting

them detained in jail for some days. He pointed out that in

recent times, with the accentuation of political rivalry, this

tendency is showing signs of steady increase.

20. Mr. Bhushan submitted that the appellant has been

implicated in a false case and apart from that he has already

joined the investigation and he is not likely to abscond, or

otherwise misuse the liberty while on bail, therefore, there was

no justification to decline anticipatory bail to the appellant.

21. Mr. Bhushan also submitted that the FIR in this case refers

to an incident which had taken place on the instigation of the

appellant about eight days ago. According to him, proper

analysis of the averments in the FIR leads to irresistible
12

conclusion that the entire prosecution story seems to be a cock

and bull story and no reliance can be placed on such a

concocted version.

22. Mr. Bhushan contended that the personal liberty is the

most important fundamental right guaranteed by the

Constitution. He also submitted that it is the fundamental

principle of criminal jurisprudence that every individual is

presumed to be innocent till he or she is found guilty. He further

submitted that on proper analysis of section 438 Cr.P.C. the

legislative wisdom becomes quite evident that the legislature

wanted to preserve and protect personal liberty and give impetus

to the age-old principle that every person is presumed to be

innocent till he is found guilty by the court.

23. Mr. Bhushan also submitted that an order of anticipatory

bail does not in any way, directly or indirectly, take away from

the police their power and right to fully investigate into charges

made against the appellant. He further submitted that when the

case is under investigation, the usual anxiety of the investigating

agency is to ensure that the alleged accused should fully

cooperate with them and should be available as and when they

require him. In the instant case, when the appellant has already
13

joined the investigation and is fully cooperating with the

investigating agency then it is difficult to comprehend why the

respondent is insistent for custodial interrogation of the

appellant? According to the appellant, in the instant case, the

investigating agency should not have a slightest doubt that the

appellant would not be available to the investigating agency for

further investigation particularly when he has already joined

investigation and is fully cooperating with the investigating

agency.

24. Mr. Bhushan also submitted that according to the General

Clauses Act, 1897 the court which grants the bail also has the

power to cancel it. The grant of bail is an interim order. The

court can always review its decision according to the subsequent

facts, circumstances and new material. Mr. Bhushan also

submitted that the exercise of grant, refusal and cancellation of

bail can be undertaken by the court either at the instance of the

accused or a public prosecutor or a complainant on finding fresh

material and new circumstances at any point of time. Even the

appellant's reluctance in not fully cooperating with the

investigation could be a ground for cancellation of bail.
14

25. Mr. Bhushan submitted that a plain reading of the section

438 Cr.P.C. clearly reveals that the legislature has not placed any

fetters on the court. In other words, the legislature has not

circumscribed court's discretion in any manner while granting

anticipatory bail, therefore, the court should not limit the order

only for a specified period till the charge-sheet is filed and

thereafter compel the accused to surrender and ask for regular

bail under section 439 Cr.P.C., meaning thereby the legislature

has not envisaged that the life of the anticipatory bail would only

last till the charge-sheet is filed. Mr. Bhushan submitted that

when no embargo has been placed by the legislature then this

court in some of its orders was not justified in placing this

embargo.

26. Mr. Bhushan submitted that the discretion which has been

granted by the legislature cannot and should not be curtailed by

interpreting the provisions contrary to the legislative intention.

The courts' discretion in grant or refusal of the anticipatory bail

cannot be diluted by interpreting the provisions against the

legislative intention. He submitted that the life is never static

and every situation has to be assessed and evaluated in the

context of emerging concerns as and when it arises. It is
15

difficult to visualize or anticipate all kinds of problems and

situations which may arise in future.

Law has been settled by an authoritative pronouncement of
the Supreme Court

27. The Constitution Bench of this Court in Gurbaksh Singh

Sibbia and Others v. State of Punjab (1980) 2 SCC 565 had an

occasion to comprehensively deal with the scope and ambit of

the concept of anticipatory bail. Section 438 Cr.P.C. is an

extraordinary provision where the accused who apprehends

his/her arrest on accusation of having committed a non-bailable

offence can be granted bail in anticipation of arrest. The

Constitution Bench's relevant observations are set out as under:

"........A wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow
out of its intemperate use. Every kind of judicial
discretion, whatever may be the nature of the matter
in regard to which it is required to be exercised, has to
be used with due care and caution. In fact, an
awareness of the context in which the discretion is
required to be exercised and of the reasonably
foreseeable consequences of its use, is the hall mark
of a prudent exercise of judicial discretion. One ought
not to make a bugbear of the power to grant
anticipatory bail".

28. Mr. Bhushan referred to a Constitution Bench judgment in

Sibbia's case (supra) to strengthen his argument that no such
16

embargo has been placed by the said judgment of the

Constitution Bench. He placed heavy reliance on para 15 of

Sibbia's case (supra), which reads as under:

"15. Judges have to decide cases as they come before
them, mindful of the need to keep passions and
prejudices out of their decisions. And it will be strange
if, by employing judicial artifices and techniques, we
cut down the discretion so wisely conferred upon the
courts, by devising a formula which will confine the
power to grant anticipatory bail within a strait-jacket.
While laying down cast-iron rules in a matter like
granting anticipatory bail, as the High Court has done,
it is apt to be overlooked that even judges can have
but an imperfect awareness of the needs of new
situations. Life is never static and every situation has
to be assessed in the context of emerging concerns as
and when it arises. Therefore, even if we were to frame
a `Code for the grant of anticipatory bail', which really
is the business of the legislature, it can at best furnish
broad guide-lines and cannot compel blind adherence.
In which case to grant bail and in which to refuse it is,
in the very nature of things, a matter of discretion.
But apart from the fact that the question is inherently
of a kind which calls for the use of discretion from
case to case, the legislature has, in terms express,
relegated the decision of that question to the
discretion of the court, by providing that it may grant
bail "if it thinks fit". The concern of the courts
generally is to preserve their discretion without
meaning to abuse it. It will be strange if we exhibit
concern to stultify the discretion conferred upon the
courts by law."

29. Mr. Bhushan submitted that the Constitution Bench in

Sibbia's case (supra) also mentioned that "we see no valid

reason for rewriting Section 438 with a view, not to expanding
17

the scope and ambit of the discretion conferred on the High

Court and the Court of Session but, for the purpose of limiting it.

Accordingly, we are unable to endorse the view of the High Court

that anticipatory bail cannot be granted in respect of offences

like criminal breach of trust for the mere reason that the

punishment provided therefor is imprisonment for life.

Circumstances may broadly justify the grant of bail in such

cases too, though of course, the court is free to refuse

anticipatory bail in any case if there is material before it

justifying such refusal".

30. Mr. Bhushan submitted that the court's orders in some

cases that anticipatory bail is granted till the charge-sheet is

filed and thereafter the accused has to surrender and seek bail

application under section 439 Cr.P.C. is neither envisaged by the

provisions of the Act nor is in consonance with the law declared

by a Constitution Bench in Sibbia's case (supra) nor it is in

conformity with the fundamental principles of criminal

jurisprudence that accused is considered to be innocent till he is

found guilty nor in consonance with the provisions of the

Constitution where individual's liberty in a democratic society is

considered sacrosanct.
18

31. Mr. Mahesh Jethmalani, learned senior counsel appearing

for respondent no. 2, submitted that looking to the facts and

circumstances of this case, the High Court was justified in

declining the anticipatory bail to the appellant. He submitted

that the anticipatory bail ought to be granted in rarest of rare

cases where the nature of offence is not very serious. He placed

reliance on the case of Pokar Ram v. State of Rajasthan and

Others (1985) 2 SCC 597 and submitted that in murder cases

custodial interrogation is of paramount importance particularly

when no eye witness account is available.

32. Mr. Jethmalani fairly submitted that the practice of passing

orders of anticipatory bail operative for a few days and directing

the accused to surrender before the Magistrate and apply for

regular bail are contrary to the law laid down in Sibbia's case

(supra). The decisions of this Court in Salauddin Abdulsamad

Shaikh v. State of Maharashtra (1996) 1 SCC 667, K. L.

Verma v. State and Another (1998) 9 SCC 348, Adri Dharan

Das v. State of West Bengal (2005) 4 SCC 303 and Sunita

Devi v. State of Bihar and Another (2005) 1 SCC 608 are in

conflict with the above decision of the Constitution Bench in

Sibbia's case (supra). He submitted that all these orders which
19

are contrary to the clear legislative intention of law laid down in

Sibbia's case (supra) are per incuriam. He also submitted that

in case the conflict between the two views is irreconcilable, the

court is bound to follow the judgment of the Constitution Bench

over the subsequent decisions of Benches of lesser strength.

33. He placed reliance on N. Meera Rani v. Government of

Tamil Nadu and Another (1989) 4 SCC 418 wherein it was

perceived that there was a clear conflict between the judgment of

the Constitution Bench and subsequent decisions of Benches of

lesser strength. The Court ruled that the dictum in the

judgment of the Constitution Bench has to be preferred over the

subsequent decisions of the Bench of lesser strength. The Court

observed thus:

".......All subsequent decisions which are cited have to
be read in the light of the Constitution Bench decision
since they are decisions by Benches comprising of
lesser number of judges. It is obvious that none of
these subsequent decisions could have intended
taking a view contrary to that of the Constitution
bench in Rameshwar Shaw's case (1964) 4 SCR 921"

34. He placed reliance on another judgment of this Court in

Vijayalaxmi Cashew Company and Others v. Dy.
20

Commercial Tax Officer and Another (1996) 1 SCC 468. This

Court held as under:

"........It is not possible to uphold the contention that
perception of the Supreme Court, as will appear from
the later judgments, has changed in this regard. A
judgment of a Five Judge Bench, which has not been
doubted by any later judgment of the Supreme Court
cannot be treated as overruled by implication."

35. He also placed reliance on Union of India and Others v.

K. S. Subramanian (1976) 3 SCC 677 and State of U.P. v.

Ram Chandra Trivedi (1976) 4 SCC 52 and submitted that in

case of conflict, the High Court has to prefer the decision of a

larger Bench to that of a smaller Bench.

36. Mr. Jethmalani submitted that not only the decision in

Sibbia's case (supra) must be followed on account of the larger

strength of the Bench that delivered it but the subsequent

decisions must be held to be per incuriam and hence not binding

since they have not taken into account the ratio of the judgment

of the Constitution Bench.

37. He further submitted that as per the doctrine of `per

incuriam', any judgment which has been passed in ignorance of

or without considering a statutory provision or a binding

precedent is not good law and the same ought to be ignored. A
21

perusal of the judgments in Salauddin Abdulsamad Shaikh v.

State of Maharashtra, K. L. Verma v. State and Another,

Adri Dharan Das v. State of West Bengal and Sunita Devi v.

State of Bihar and Another (supra) indicates that none of

these judgments have considered para 42 of Sibbia's case

(supra) in proper perspective. According to Mr. Jethmalani, all

subsequent decisions which have been cited above have to be

read in the light of the Constitution Bench's decision in Sibbia's

case (supra) since they are decisions of Benches comprised of

lesser number of judges. According to him, none of these

subsequent decisions could be intended taking a view contrary to

that of the Constitution Bench in Sibbia's case (supra).

38. Thus, the law laid down in para 42 by the Constitution

Bench that the normal rule is not to limit operation of the order

of anticipatory bail, was not taken into account by the courts

passing the subsequent judgments. The observations made by

the courts in the subsequent judgments have been made in

ignorance of and without considering the law laid down in para

42 which was binding on them. In these circumstances, the

observations made in the subsequent judgments to the effect

that anticipatory bail should be for a limited period of time, must
22

be construed to be per incuriam and the decision of the

Constitution Bench preferred.

39. He further submitted that the said issue came up for

consideration before the Madras High Court reported in

Palanikumar and Another v. State 2007 (4) CTC 1 wherein

after discussing all the judgments of this court on the issue, the

court held that the subsequent judgments were in conflict with

the decision of the Constitution Bench in Sibbia's case (supra)

and in accordance with the law of precedents, the judgment of

the Constitution Bench is biding on all courts and the ratio of

that judgment has to be applicable for all judgments decided by

the Benches of same or smaller combinations. In the said

judgment of Sibbia's case (supra) it was directed that the

anticipatory bail should not be limited in period of time.

40. We have heard the learned counsel for the parties at great

length and perused the written submissions filed by the learned

counsel for the parties.

Relevance and importance of personal liberty

41. All human beings are born with some unalienable rights

like life, liberty and pursuit of happiness. The importance of
23

these natural rights can be found in the fact that these are

fundamental for their proper existence and no other right can be

enjoyed without the presence of right to life and liberty.

42. Life bereft of liberty would be without honour and dignity

and it would lose all significance and meaning and the life itself

would not be worth living. That is why "liberty" is called the very

quintessence of a civilized existence.

43. Origin of "liberty"' can be traced in the ancient Greek

civilization. The Greeks distinguished between the liberty of the

group and the liberty of the individual. In 431 B.C., an Athenian

statesman described that the concept of liberty was the outcome

of two notions, firstly, protection of group from attack and

secondly, the ambition of the group to realize itself as fully as

possible through the self-realization of the individual by way of

human reason. Greeks assigned the duty of protecting their

liberties to the State. According to Aristotle, as the state was a

means to fulfil certain fundamental needs of human nature and

was a means for development of individuals' personality in

association of fellow citizens so it was natural and necessary to

man. Plato found his "republic" as the best source for the

achievement of the self-realization of the people.
24

44. Chambers' Twentieth Century Dictionary defines "liberty"

as "Freedom to do as one pleases, the unrestrained employment

of natural rights, power of free chance, privileges, exemption,

relaxation of restraint, the bounds within which certain

privileges are enjoyed, freedom of speech and action beyond

ordinary civility".

45. It is very difficult to define the "liberty". It has many facets

and meanings. The philosophers and moralists have praised

freedom and liberty but this term is difficult to define because it

does not resist any interpretation. The term "liberty" may be

defined as the affirmation by an individual or group of his or its

own essence. It needs the presence of three factors, firstly,

harmonious balance of personality, secondly, the absence of

restraint upon the exercise of that affirmation and thirdly,

organization of opportunities for the exercise of a continuous

initiative.

46. "Liberty" may be defined as a power of acting according to

the determinations of the will. According to Harold Laski, liberty

was essentially an absence of restraints and John Stuard Mill
25

viewed that "all restraint", qua restraint is an evil". In the words

of Jonathon Edwards, the meaning of "liberty" and freedom is:

"Power, opportunity or advantage that any one has to
do as he pleases, or, in other words, his being free
from hindrance or impediment in the way of doing, or
conducting in any respect, as he wills."

47. It can be found that "liberty" generally means the

prevention of restraints and providing such opportunities, the

denial of which would result in frustration and ultimately

disorder. Restraints on man's liberty are laid down by power

used through absolute discretion, which when used in this

manner brings an end to "liberty" and freedom is lost. At the

same time "liberty" without restraints would mean liberty won by

one and lost by another. So "liberty" means doing of anything

one desires but subject to the desire of others.

48. As John E.E.D. in his monograph Action on "Essays on

Freedom and Power" wrote that Liberty is one of the most

essential requirements of the modern man. It is said to be the

delicate fruit of a mature civilization.

49. A distinguished former Attorney General for India, M.C.

Setalvad in his treatise "War and Civil Liberties" observed that
26

the French Convention stipulates common happiness as the end

of the society, whereas Bentham postulates the greatest

happiness of the greatest number as the end of law. Article 19 of

the Indian Constitution averts to freedom and it enumerates

certain rights regarding individual freedom. These rights are

vital and most important freedoms which lie at the very root of

liberty.

50. He further observed that the concept of civil liberty is

essentially rooted in the philosophy of individualism. According

to this doctrine, the highest development of the individual and

the enrichment of his personality are the true function and end

of the state. It is only when the individual has reached the

highest state of perfection and evolved what is best in him that

society and the state can reach their goal of perfection. In brief,

according to this doctrine, the state exists mainly, if not solely,

for the purpose of affording the individual freedom and

assistance for the attainment of his growth and perfection. The

state exists for the benefit of the individual.

51. Mr. Setalvad in the same treatise further observed that it is

also true that the individual cannot attain the highest in him
27

unless he is in possession of certain essential liberties which

leave him free as it were to breathe and expand. According to

Justice Holmes, these liberties are the indispensable conditions

of a free society. The justification of the existence of such a state

can only be the advancement of the interests of the individuals

who compose it and who are its members. Therefore, in a

properly constituted democratic state, there cannot be a conflict

between the interests of the citizens and those of the state. The

harmony, if not the identity, of the interests of the state and the

individual, is the fundamental basis of the modern Democratic

National State. And, yet the existence of the state and all

government and even all law must mean in a measure the

curtailment of the liberty of the individual. But such a surrender

and curtailment of his liberty is essential in the interests of the

citizens of the State. The individuals composing the state must,

in their own interests and in order that they may be assured the

existence of conditions in which they can, with a reasonable

amount of freedom, carry on their other activities, endow those

in authority over them to make laws and regulations and adopt

measures which impose certain restrictions on the activities of

the individuals.
28

52. Harold J. Laski in his monumental work in "Liberty in the

Modern State" observed that liberty always demands a limitation

on political authority. Power as such when uncontrolled is

always the natural enemy of freedom.

53. Roscoe Pound, an eminent and one of the greatest

American Law Professors aptly observed in his book "The

Development of Constitutional Guarantee of Liberty" that

whatever, `liberty' may mean today, the liberty is guaranteed by

our bills of rights, "is a reservation to the individual of certain

fundamental reasonable expectations involved in life in civilized

society and a freedom from arbitrary and unreasonable exercise

of the power and authority of those who are designated or chosen

in a politically organized society to adjust that society to

individuals."

54. Blackstone in "Commentaries on the Laws of England",

Vol.I, p.134 aptly observed that "Personal liberty consists in the

power of locomotion, of changing situation or moving one's

person to whatsoever place one's own inclination may direct,

without imprisonment or restraint unless by due process of law".
29

55. According to Dicey, a distinguished English author of the

Constitutional Law in his treatise on Constitutional Law

observed that, "Personal liberty, as understood in England,

means in substance a person's right not to be subjected to

imprisonment, arrest, or other physical coercion in any manner

that does not admit of legal justification." [Dicey on

Constitutional Law, 9th Edn., pp.207-08]. According to him, it is

the negative right of not being subjected to any form of physical

restraint or coercion that constitutes the essence of personal

liberty and not mere freedom to move to any part of the Indian

territory. In ordinary language personal liberty means liberty

relating to or concerning the person or body of the individual,

and personal liberty in this sense is the antithesis of physical

restraint or coercion.

56. Eminent English Judge Lord Alfred Denning observed:

"By personal freedom I mean freedom of every
law abiding citizen to think what he will, to say what
he will, and to go where he will on his lawful occasion
without hindrance from any person.... It must be
matched, of course, with social security by which I
mean the peace and good order of the community in
which we live."
30

57. Eminent former Judge of this Court, Justice H.R. Khanna

in a speech as published in 2 IJIL, Vol.18 (1978), p.133 observed

that "liberty postulates the creation of a climate wherein there is

no suppression of the human spirits, wherein, there is no denial

of the opportunity for the full growth of human personality,

wherein head is held high and there is no servility of the human

mind or enslavement of the human body".

Right to life and personal liberty under the Constitution

58. We deem it appropriate to deal with the concept of personal

liberty under the Indian and other Constitutions.

59. The Fundamental Rights represent the basic values

enriched by the people of this country. The aim behind having

elementary right of the individual such as the Right to Life and

Liberty is not fulfilled as desired by the framers of the

Constitution. It is to preserve and protect certain basic human

rights against interference by the state. The inclusion of a

Chapter in Constitution is in accordance with the trends of

modern democratic thought. The object is to ensure the

inviolability of certain essential rights against political

vicissitudes.
31

60. The framers of the Indian Constitution followed the

American model in adopting and incorporating the Fundamental

Rights for the people of India. American Constitution provides

that no person shall be deprived of his life, liberty, or property

without due process of law. The due process clause not only

protects the property but also life and liberty, similarly Article 21

of the Indian Constitution asserts the importance of life and

liberty. The said Article reads as under:-

"no person shall be deprived for his life or personal
liberty except according to procedure established by
law"

ensure these essentials of life to all its citizens, and if possible to

non-citizens. While invoking the provisions of Article 21, and by

referring to the oft-quoted statement of Joseph Addision, "Better

to die ten thousand deaths than wound my honour", the Apex

court in Khedat Mazdoor Chetana Sangath v. State of M.P.

and Others (1994) 6 SCC 260 posed to itself a question "If

dignity or honour vanishes what remains of life"? This is the

significance of the Right to Life and Personal Liberty guaranteed

under the Constitution of India in its third part.

72. This court in Central Inland Water Transport

Corporation Ltd. and Another v. Brojo Nath Ganguly and
37

Another (1986) 3 SCC 156 observed that the law must respond

and be responsive to the felt and discernible compulsions of

circumstances that would be equitable, fair and justice, and

unless there is anything to the contrary in the statute, Court

must take cognizance of that fact and act accordingly.

73. This court remarked that an undertrial prisoner should not

be put in fetters while he is being taken from prison to Court or

back to prison from Court. Steps other than putting him in

fetters will have to be taken to prevent his escape.

74. In Prem Shankar Shukla v. Delhi Administration (1980)

3 SCC 526, this court has made following observations:

"....... The Punjab Police Manual, in so far as it puts
the ordinary Indian beneath the better class breed
(para 26.21A and 26.22 of Chapter XXVI) is
untenable and arbitrary. Indian humans shall not
be dichotomised and the common run discriminated
against regarding handcuffs. The provisions in para
26.22 that every under-trial who is accused of a
non-bailable offence punishable with more than 3
years prison term shall be routinely handcuffed is
violative of Articles 14, 19 and 21. The nature of the
accusation is not the criterion. The clear and
present danger of escape breaking out of the police
control is the determinant. And for this there must
be clear material, not glib assumption, record of
reasons and judicial oversight and summary
hearing and direction by the court where the victim
is produced. ... Handcuffs are not summary
punishment vicariously imposed at police level, at
38

once obnoxious and irreversible. Armed escorts,
worth the salt, can overpower any unarmed under-
trial and extra guards can make up exceptional
needs. In very special situations, the application of
irons is not ruled out. The same reasoning applies
to (e) and (f). Why torture the prisoner because
others will demonstrate or attempt his rescue? The
plain law of under-trial custody is thus contrary to
the unedifying escort practice. (Para 31)

Even in cases where, in extreme circumstances,
handcuffs have to be put on the prisoner, the
escorting authority must record contemporaneously
the reason for doing so. Otherwise, under Article 21
the procedure will be unfair and bad in law. The
minions of the police establishment must make
good their security recipes by getting judicial
approval. And, once the court directs that handcuffs
shall be off, no escorting authority can overrule
judicial direction. This is implicit in Article 21 which
insists upon fairness, reasonableness and justice in
the very procedure which authorities stringent
deprivation of life and liberty. (Para 30)

It is implicit in Articles 14 and 19 that when there is
no compulsive need to fetter a person's limbs, it is
sadistic, capricious, despotic and demoralizing to
humble a man by manacling him. Such arbitrary
conduct surely slaps Article 14 on the face. The
minimal freedom of movement which even a
detainee is entitled to under Article 19 cannot be
cut down cruelly by application of handcuffs or
other hoops. It will be unreasonable so to do unless
the State is able to make out that no other practical
way of forbidding escape is available, the prisoner
being so dangerous and desperate and the
circumstances so hostile to safekeeping. (Para 23)

Whether handcuffs or other restraint should be
imposed on a prisoner is a matter for the decision of
the authority responsible for his custody. But there
is room for imposing supervisory regime over the
39

exercise of that power. One sector of supervisory
jurisdiction could appropriately lie with the court
trying the accused, and it would be desirable for the
custodial authority to inform that court of the
circumstances in which, and the justification for,
imposing a restraint on the body of the accused. It
should be for the court concerned to work out the
modalities of the procedure requisite for the
purpose of enforcing such control."

75. After dealing with the concept of life and liberty under the

Indian Constitution, we would like to have the brief survey of

other countries to ascertain how life and liberty has been

protected in other countries.

UNITED KINGDOM

76. Life and personal liberty has been given prime importance

in the United Kingdom. It was in 1215 that the people of England

revolted against King John and enforced their rights, first time

the King had acknowledged that there were certain rights of the

subject could be called Magna Carta 1215. In 1628 the petition

of rights was presented to King Charles-I which was the 1st step

in the transfer of Sovereignty from the King to Parliament. It was

passed as the Bill of Rights 1689.

77. In the Magna Carta, it is stated "no free man shall be taken,

or imprisoned or disseised or outlawed or banished or any ways
40

destroyed, nor will the King pass upon him or commit him to

prison, unless by the judgment of his peers or the law of the

land".

78. Right to life is the most fundamental of all human rights

and any decision affecting human right or which may put an

individual's life at risk must call for the most anxious scrutiny.

See: Bugdaycay v. Secretary of State for the Home

Department (1987) 1 All ER 940. The sanctity of human life is

probably the most fundamental of the human social values. It is

recognized in all civilized societies and their legal system and by

the internationally recognized statements of human rights. See:

R on the application of Pretty v. Director of Public

Prosecutions (2002) 1 All ER 1.

U.S.A.
79. The importance of personal liberty is reflected in the Fifth

Amendment to the Constitution of U.S.A. (1791) which declares

as under :-

"No person shall be.....deprived of his life, liberty or
property, without due process of law." (The `due
process' clause was adopted in s.1(a) of the
Canadian Bill of Rights Act, 1960. In the Canada
Act, 1982, this expression has been substituted by
`the principles of fundamental justice' [s.7].
41

80. The Fourteenth Amendment imposes similar limitation on

the State authorities. These two provisions are conveniently

referred to as the `due process clauses'. Under the above clauses

the American Judiciary claims to declare a law as bad, if it is not

in accordance with `due process', even though the legislation

may be within the competence of the Legislature concerned. Due

process is conveniently understood means procedural regularity

and fairness. (Constitutional Interpretation by Craig R. Ducat, 8 th

Edn. 2002 p.475.).

WEST GERMANY

81. Article 2(2) of the West German Constitution (1948)

declares:

"Everyone shall have the right to life and physical
inviolability. The freedom of the individual shall be
inviolable. These rights may be interfered with only on
the basis of the legal order."

Though the freedom of life and liberty guaranteed by the above

Article may be restricted, such restriction will be valid only if it is

in conformity with the `legal order' (or `pursuant to a law,

according to official translation). Being a basic right, the

freedom guaranteed by Article 2(2) is binding on the legislative,

administrative and judicial organs of the State [Article 1(3)]. This
42

gives the individual the rights to challenge the validity of a law or

an executive act violative the freedom of the person by a

constitutional complaint to the Federal Constitutional Court,

under Article 93. Procedural guarantee is given by Articles

103(1) and 104. Article 104(1)-2(2) provides:

"(1) The freedom of the individual may be restricted
only on the basis of a formal law and only with due
regard to the forms prescribed therein..........

(2) Only the Judge shall decide on the admissibility
and continued deprivation of liberty."

82. These provisions correspond to Article 21 of our

Constitution and the court is empowered to set a man to liberty

if it appears that he has been imprisoned without the authority

of a formal law or in contravention of the procedure prescribed

there.

JAPAN

83. Article XXXI of the Japanese Constitution of 1946 says :

"No person shall be deprived of life or liberty nor shall
any other criminal penalty be imposed, except
according to procedure established by law."

This article is similar to Article 21 of our Constitution save that it

includes other criminal penalties, such as fine or forfeiture

within its ambit.
43

CANADA

84. S. 1(1) of the Canadian Bill of Rights Act, 1960, adopted the

`Due Process' Clause from the American Constitution. But the

difference in the Canadian set-up was due to the fact that this

Act was not a constitutional instrument to impose a direct

limitation on the Legislature but only a statute for interpretation

of Canadian status, which, again, could be excluded from the

purview of the Act of 1960, in particular cases, by an express

declaration made by the Canadian Parliament itself (s.2). The

result was obvious : The Canadian Supreme Court in R. v. Curr

(1972) S.C.R. 889 held that the Canadian Court would not

import `substantive reasonableness' into s.1(a), because of the

unsalutary experience of substantive due process in the U.S.A.;

and that as to `procedural reasonableness', s.1(a) of the Bill of

Rights Act only referred to `the legal processes recognized by

Parliament and the Courts in Canada'. The result was that in

Canada, the `due process clause' lost its utility as an instrument

of judicial review of legislation and it came to mean practically

the same thing as whatever the Legislature prescribes, - much

the same as `procedure established by law' in Article 21 of the

Constitution of India, as interpreted in A.K. Gopalan (supra).
44

BANGADESH

85. Article 32 of the Constitution of Bangladesh, 1972 [3 SCW

385] reads as under:

"No person shall be deprived of life or personal liberty
save in accordance with law."

This provision is similar to Article 21 of the Indian Constitution.

Consequently, unless controlled by some other provision, it

should be interpreted as in India.

PAKISTAN

86. Article 9 Right to life and Liberty. - "Security of Person : No

person shall be deprived of life and liberty save in accordance

with law."

NEPAL

87. In the 1962 - Constitution of Nepal, there is Article 11(1)

which deals with right to life and liberty which is identical with

Article 21 of the Indian Constitution.

INTERNATIONAL CHARTERS

88. Universal Declaration, 1948. - Article 3 of the Universal

Declaration says:

"Everyone has the right to life, liberty and security of
person."
45

Article 9 provides:

"No one shall be subjected to arbitrary arrest,
detention or exile."

Cl.10 says:

"Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial
tribunal, in the determination of his rights and
obligations and of any criminal charge against him."
[As to its legal effect, see M. v. Organisation Belge,
(1972) 45 Inter, LR 446 (447, 451, et. Sq.)]

89. Covenant on Civil and Political Rights - Article 9(1) of the

U.N. 1966, 1966 says:

"Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such
procedure as are established by law."

90. European Convention on Human Rights, 1950. - This

Convention contains a most elaborate and detailed codification of

the rights and safeguards for the protection of life and personal

liberty against arbitrary invasion.

91. In every civilized democratic country, liberty is considered

to be the most precious human right of every person. The Law

Commission of India in its 177th Report under the heading

`Introduction to the doctrine of "arrest" has described as follows:
46

"Liberty is the most precious of all the human
rights". It has been the founding faith of the human
race for more than 200 years. Both the American
Declaration of Independence, 1776 and the French
Declaration of the Rights of Man and the Citizen,
1789, spoke of liberty being one of the natural and
inalienable rights of man. The universal declaration of
human rights adopted by the general assembly on
United Nations on December 10, 1948 contains
several articles designed to protect and promote the
liberty of individual. So does the international
covenant on civil and political rights, 1996. Above all,
Article 21 of the Constitution of India proclaims that
no one shall be deprived of his right to personal liberty
except in accordance with the procedure prescribed by
law. Even Article 20(1) & (2) and Article 22 are born
out of a concern for human liberty. As it is often said,
"one realizes the value of liberty only when he is
deprived of it." Liberty, along with equality is the most
fundamental of human rights and the fundamental
freedoms guaranteed by the Constitution. Of equal
importance is the maintenance of peace, law and order
in the society. Unless, there is peace, no real progress
is possible. Societal peace lends stability and security
to the polity. It provides the necessary conditions for
growth, whether it is in the economic sphere or in the
scientific and technological spheres."

92. Just as the Liberty is precious to an individual, so is the

society's interest in maintenance of peace, law and order. Both

are equally important.

93. It is a matter of common knowledge that a large number of

undertrials are languishing in jail for a long time even for

allegedly committing very minor offences. This is because

section 438 Cr.P.C. has not been allowed its full play. The
47

Constitution Bench in Sibbia's case (supra) clearly mentioned

that section 438 Cr.P.C. is extraordinary because it was

incorporated in the Code of Criminal Procedure, 1973 and before

that other provisions for grant of bail were sections 437 and 439

Cr.P.C. It is not extraordinary in the sense that it should be

invoked only in exceptional or rare cases. Some courts of

smaller strength have erroneously observed that section 438

Cr.P.C. should be invoked only in exceptional or rare cases.

Those orders are contrary to the law laid down by the judgment

of the Constitution Bench in Sibbia's case (supra). According to

the report of the National Police Commission, the power of arrest

is grossly abused and clearly violates the personal liberty of the

people, as enshrined under Article 21 of the Constitution, then

the courts need to take serious notice of it. When conviction rate

is admittedly less than 10%, then the police should be slow in

arresting the accused. The courts considering the bail

application should try to maintain fine balance between the

societal interest vis-`-vis personal liberty while adhering to the

fundamental principle of criminal jurisprudence that the accused

that the accused is presumed to be innocent till he is found

guilty by the competent court.
48

94. The complaint filed against the accused needs to be

thoroughly examined including the aspect whether the

complainant has filed false or frivolous complaint on earlier

occasion. The court should also examine the fact whether there

is any family dispute between the accused and the complainant

and the complainant must be clearly told that if the complaint is

found to be false or frivolous, then strict action will be taken

against him in accordance with law. If the connivance between

the complainant and the investigating officer is established then

action be taken against the investigating officer in accordance

with law.

95. The gravity of charge and exact role of the accused must be

properly comprehended. Before arrest, the arresting officer must

record the valid reasons which have led to the arrest of the

accused in the case diary. In exceptional cases the reasons

could be recorded immediately after the arrest, so that while

dealing with the bail application, the remarks and observations

of the arresting officer can also be properly evaluated by the

court.
49

96. It is imperative for the courts to carefully and with

meticulous precision evaluate the facts of the case. The

discretion must be exercised on the basis of the available

material and the facts of the particular case. In cases where the

court is of the considered view that the accused has joined

investigation and he is fully cooperating with the investigating

agency and is not likely to abscond, in that event, custodial

interrogation should be avoided.

97. A great ignominy, humiliation and disgrace is attached to

the arrest. Arrest leads to many serious consequences not only

for the accused but for the entire family and at times for the

entire community. Most people do not make any distinction

between arrest at a pre-conviction stage or post-conviction stage.

Whether the powers under section 438 Cr.P.C. are subject to
limitation of section 437 Cr.P.C.?

98. The question which arises for consideration is whether the

powers under section 438 Cr.P.C. are unguided or uncanalised

or are subject to all the limitations of section 437 Cr.P.C.? The

Constitution Bench in Sibbia's case (supra) has clearly observed

that there is no justification for reading into section 438 Cr.P.C.

and the limitations mentioned in section 437 Cr.P.C. The Court
50

further observed that the plentitude of the section must be given

its full play. The Constitution Bench has also observed that the

High Court is not right in observing that the accused must make

out a "special case" for the exercise of the power to grant

anticipatory bail. This virtually, reduces the salutary power

conferred by section 438 Cr.P.C. to a dead letter. The Court

observed that "We do not see why the provisions of Section 438

Cr.P.C. should be suspected as containing something volatile or

incendiary, which needs to be handled with the greatest care and

caution imaginable."

99. As aptly observed in Sibbia's case (supra) that a wise

exercise of judicial power inevitably takes care of the evil

consequences which are likely to flow out of its intemperate use.

Every kind of judicial discretion, whatever may be the nature of

the matter in regard to which it is required to be exercised, has

to be used with due care and caution. In fact, an awareness of

the context in which the discretion is required to be exercised

and of the reasonably foreseeable consequences of its use, is the

hallmark of a prudent exercise of judicial discretion. One ought

not to make a bugbear of the power to grant anticipatory bail.
51

100. The Constitution Bench in the same judgment also

observed that a person seeking anticipatory bail is still a free

man entitled to the presumption of innocence. He is willing to

submit to restraints and conditions on his freedom, by the

acceptance of conditions which the court may deem fit to impose,

in consideration of the assurance that if arrested, he shall

enlarged on bail.

101. The proper course of action ought to be that after

evaluating the averments and accusation available on the record

if the court is inclined to grant anticipatory bail then an interim

bail be granted and notice be issued to the public prosecutor.

After hearing the public prosecutor the court may either reject

the bail application or confirm the initial order of granting bail.

The court would certainly be entitled to impose conditions for the

grant of bail. The public prosecutor or complainant would be at

liberty to move the same court for cancellation or modifying the

conditions of bail any time if liberty granted by the court is

misused. The bail granted by the court should ordinarily be

continued till the trial of the case.
52

102. The order granting anticipatory bail for a limited duration

and thereafter directing the accused to surrender and apply

before a regular bail is contrary to the legislative intention and

the judgment of the Constitution Bench in Sibbia's case

(supra).

103. It is a settled legal position that the court which grants the

bail also has the power to cancel it. The discretion of grant or

cancellation of bail can be exercised either at the instance of the

accused, the public prosecutor or the complainant on finding

new material or circumstances at any point of time.

104. The intention of the legislature is quite clear that the power

of grant or refusal of bail is entirely discretionary. The

Constitution Bench in Sibbia's case (supra) has clearly stated

that grant and refusal is discretionary and it should depend on

the facts and circumstances of each case. The Constitution

Bench in the said case has aptly observed that we must respect

the wisdom of the Legislature entrusting this power to the

superior courts namely, the High Court and the Court of

Session. The Constitution Bench observed as under:
53

"We would, therefore, prefer to leave the High Court
and the Court of Session to exercise their jurisdiction
under Section 438 by a wise and careful use of their
discretion which, by their long training and
experience, they are ideally suited to do. The ends of
justice will be better served by trusting these courts to
act objectively and in consonance with principles
governing the grant of bail which are recognized over
the years, than by divesting them of their discretion
which the legislature has conferred upon them, by
laying down inflexible rules of general application. It is
customary, almost chronic, to take a statute as one
finds it on the grounds that, after all "the legislature
in, its wisdom" has thought it fit to use a particular
expression. A convention may usefully grow whereby
the High Court and the Court of Session may be
trusted to exercise their discretionary powers in their
wisdom, especially when the discretion is entrusted to
their care by the legislature in its wisdom. If they err,
they are liable to be corrected."

GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO
THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE
CONSTITUTION BENCH:

105. The court which grants the bail has the right to cancel the

bail according to the provisions of the General Clauses Act but

ordinarily after hearing the public prosecutor when the bail order

is confirmed then the benefit of the grant of the bail should

continue till the end of the trial of that case.

106. The judgment in Salauddin Abdulsamad Shaikh (supra)

is contrary to legislative intent and the spirit of the very

provisions of the anticipatory bail itself and has resulted in an
54

artificial and unreasonable restriction on the scope of enactment

contrary to the legislative intention.

107. The restriction on the provision of anticipatory bail under

section 438 Cr.P.C. limits the personal liberty of the accused

granted under Article 21 of the constitution. The added

observation is nowhere found in the enactment and bringing in

restrictions which are not found in the enactment is again an

unreasonable restriction. It would not stand the test of fairness

and reasonableness which is implicit in Article 21 of the

Constitution after the decision in Maneka Gandhi's case (supra)

in which the court observed that in order to meet the challenge

of Article 21 of the Constitution the procedure established by law

for depriving a person of his liberty must be fair, just and

reasonable.

108. Section 438 Cr.P.C. does not mention anything about the

duration to which a direction for release on bail in the event of

arrest can be granted. The order granting anticipatory bail is a

direction specifically to release the accused on bail in the event

of his arrest. Once such a direction of anticipatory bail is

executed by the accused and he is released on bail, the
55

concerned court would be fully justified in imposing conditions

including direction of joining investigation.

109. The court does not use the expression `anticipatory bail' but

it provides for issuance of direction for the release on bail by the

High Court or the Court of Sessions in the event of arrest.

According to the aforesaid judgment of Salauddin's case, the

accused has to surrender before the trial court and only

thereafter he/she can make prayer for grant of bail by the trial

court. The trial court would release the accused only after he has

surrendered.

110. In pursuance to the order of the Court of Sessions or the

High Court, once the accused is released on bail by the trial

court, then it would be unreasonable to compel the accused to

surrender before the trial court and again apply for regular bail.

111. The court must bear in mind that at times the applicant

would approach the court for grant of anticipatory bail on mere

apprehension of being arrested on accusation of having

committed a non-bailable offence. In fact, the investigating or

concerned agency may not otherwise arrest that applicant who

has applied for anticipatory bail but just because he makes an
56

application before the court and gets the relief from the court for

a limited period and thereafter he has to surrender before the

trial court and only thereafter his bail application can be

considered and life of anticipatory bail comes to an end. This

may lead to disastrous and unfortunate consequences. The

applicant who may not have otherwise lost his liberty loses it

because he chose to file application of anticipatory bail on mere

apprehension of being arrested on accusation of having

committed a non-bailable offence. No arrest should be made

because it is lawful for the police officer to do so. The existence

of power to arrest is one thing and the justification for the

exercise of it is quite another. The police officer must be able to

justify the arrest apart from his power to do so. This finding of

the said judgment (supra) is contrary to the legislative intention

and law which has been declared by a Constitution Bench of this

court in Sibbia's case (supra).

112. The validity of the restrictions imposed by the Apex Court,

namely, that the accused released on anticipatory bail must

submit himself to custody and only thereafter can apply for

regular bail. This is contrary to the basic intention and spirit of

section 438 Cr.P.C. It is also contrary to Article 21 of the
57

Constitution. The test of fairness and reasonableness is implicit

under Article 21 of the Constitution of India. Directing the

accused to surrender to custody after the limited period amounts

to deprivation of his personal liberty.

113. It is a settled legal position crystallized by the Constitution

Bench of this court in Sibbia's case (supra) that the courts

should not impose restrictions on the ambit and scope of section

438 Cr.P.C. which are not envisaged by the Legislature. The

court cannot rewrite the provision of the statute in the garb of

interpreting it.

114. It is unreasonable to lay down strict, inflexible and rigid

rules for exercise of such discretion by limiting the period of

which an order under this section could be granted. We deem it

appropriate to reproduce some observations of the judgment of

the Constitution Bench of this court in the Sibbia's case

(supra).

"The validity of that section must accordingly be
examined by the test of fairness and reasonableness
which is implicit in Article 21. If the legislature itself
were to impose an unreasonable restriction on the
grant of anticipatory bail, such a restriction could
have been struck down as being violative of Article 21.
Therefore, while determining the scope of Section 438,
the court should not impose any unfair or
58

unreasonable limitation on the individual's right to
obtain an order of anticipatory bail. Imposition of an
unfair or unreasonable limitation, according to the
learned Counsel, would be violative of Article 21,
irrespective of whether it is imposed by legislation or
by judicial decision.

xxx xxx xxx

Clause (1) of Section 438 is couched in terms,
broad and unqualified. By any known canon of
construction, words of width and amplitude ought not
generally to be cut down so as to read into the
language of the statute restraints and conditions
which the legislature itself did not think it proper or
necessary to impose. This is especially true when the
statutory provision which falls for consideration is
designed to secure a valuable right like the right to
personal freedom and involves the application of a
presumption as salutary and deep grained in our
criminal jurisprudence as the presumption of
innocence."
xxx xxx xxx

"I desire in the first instance to point out that the
discretion given by the section is very wide. . . Now it
seems to me that when the Act is so expressed to
provide a wide discretion, ... it is not advisable to lay
down any rigid rules for guiding that discretion. I do
not doubt that the rules enunciated by the Master of
the Rolls in the present case are useful maxims in
general, and that in general they reflect the point of
view from which judges would regard an application
for relief. But I think it ought to be distinctly
understood that there may be cases in which any or
all of them may be disregarded. If it were otherwise,
the free discretion given by the statute would be
fettered by limitations which have nowhere been
enacted. It is one thing to decide what is the true
meaning of the language contained in an Act of
Parliament. It is quite a different thing to place
59

conditions upon a free discretion entrusted by statute
to the court where the conditions are not based upon
statutory enactment at all. It is not safe, I think, to say
that the court must and will always insist upon
certain things when the Act does not require them,
and the facts of some unforeseen case may make the
court wish it had kept a free hand."
xxx xxx xxx

"The concern of the courts generally is to preserve
their discretion without meaning to abuse it. It will be
strange if we exhibit concern to stultify the discretion
conferred upon the courts by law."

115. The Apex Court in Salauddin's case (supra) held that

anticipatory bail should be granted only for a limited period and

on the expiry of that duration it should be left to the regular

court to deal with the matter is not the correct view. The reasons

quoted in the said judgment is that anticipatory bail is granted

at a stage when an investigation is incomplete and the court is

not informed about the nature of evidence against the alleged

offender.

116. The said reason would not be right as the restriction is not

seen in the enactment and bail orders by the High Court and

Sessions Court are granted under sections 437 and 439 also at

such stages and they are granted till the trial.
60

117. The view expressed by this Court in all the above referred

judgments have to be reviewed and once the anticipatory bail is

granted then the protection should ordinarily be available till the

end of the trial unless the interim protection by way of the grant

of anticipatory bail is curtailed when the anticipatory bail

granted by the court is cancelled by the court on finding fresh

material or circumstances or on the ground of abuse of the

indulgence by the accused.

SCOPE AND AMBIT OF ANTICIPATORY BAIL:

118. A good deal of misunderstanding with regard to the ambit

and scope of section 438 Cr.P.C. could have been avoided in case

the Constitution Bench decision of this court in Sibbia's case

(supra) was correctly understood, appreciated and applied.

119. This Court in the Sibbia's case (supra) laid down the

following principles with regard to anticipatory bail:

a) Section 438(1) is to be interpreted in light of Article
21 of the Constitution of India.

b) Filing of FIR is not a condition precedent to exercise
of power under section 438.

c) Order under section 438 would not affect the right
of police to conduct investigation.

e) Although the power to release on anticipatory bail
can be described as of an "extraordinary" character
this would "not justify the conclusion that the
power must be exercised in exceptional cases only."
Powers are discretionary to be exercised in light of
the circumstances of each case.

f) Initial order can be passed without notice to the
Public Prosecutor. Thereafter, notice must be
issued forthwith and question ought to be re-
examined after hearing. Such ad interim order
must conform to requirements of the section and
suitable conditions should be imposed on the
applicant.

120. The Law Commission in July 2002 has severely criticized

the police of our country for the arbitrary use of power of arrest

which, the Commission said, is the result of the vast

discretionary powers conferred upon them by this Code. The

Commission expressed concern that there is no internal

mechanism within the police department to prevent misuse of

law in this manner and the stark reality that complaint lodged in

this regard does not bring any result. The Commission intends

to suggest amendments in the Criminal Procedure Code and has

invited suggestions from various quarters. Reference is made in

this Article to the 41st Report of the Law Commission wherein the

Commission saw `no justification' to require a person to submit

to custody, remain in prison for some days and then apply for
62

bail even when there are reasonable grounds for holding that the

person accused of an offence is not likely to abscond or

otherwise misuse his liberty. Discretionary power to order

anticipatory bail is required to be exercised keeping in mind

these sentiments and spirit of the judgments of this court in

Sibbia's case (supra) and Joginder Kumar v. State of U.P.

and Others (1994) 4 SCC 260.

Relevant consideration for exercise of the power

121. No inflexible guidelines or straitjacket formula can be

provided for grant or refusal of anticipatory bail. We are clearly

of the view that no attempt should be made to provide rigid and

inflexible guidelines in this respect because all circumstances

and situations of future cannot be clearly visualized for the grant

or refusal of anticipatory bail. In consonance with the legislative

intention the grant or refusal of anticipatory bail should

necessarily depend on facts and circumstances of each case. As

aptly observed in the Constitution Bench decision in Sibbia's

case (supra) that the High Court or the Court of Sessions to

exercise their jurisdiction under section 438 Cr.P.C. by a wise

and careful use of their discretion which by their long training

and experience they are ideally suited to do. In any event, this is
63

the legislative mandate which we are bound to respect and

honour.

122. The following factors and parameters can be taken into

consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;

ii. The antecedents of the applicant including the fact
as to whether the accused has previously
undergone imprisonment on conviction by a Court
in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat
similar or the other offences.

v. Where the accusations have been made only with
the object of injuring or humiliating the applicant
by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people.

vii. The courts must evaluate the entire available
material against the accused very carefully. The
court must also clearly comprehend the exact role
of the accused in the case. The cases in which
accused is implicated with the help of sections 34
and 149 of the Indian Penal Code, the court should
consider with even greater care and caution
because over implication in the cases is a matter of
common knowledge and concern;

viii. While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should be
64

caused to the free, fair and full investigation and
there should be prevention of harassment,
humiliation and unjustified detention of the
accused;

ix. The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat
to the complainant;

x. Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in the
matter of grant of bail and in the event of there
being some doubt as to the genuineness of the
prosecution, in the normal course of events, the
accused is entitled to an order of bail.

123. The arrest should be the last option and it should be

restricted to those exceptional cases where arresting the accused

is imperative in the facts and circumstances of that case.

124. The court must carefully examine the entire available

record and particularly the allegations which have been directly

attributed to the accused and these allegations are corroborated

by other material and circumstances on record.

125. These are some of the factors which should be taken into

consideration while deciding the anticipatory bail applications.

These factors are by no means exhaustive but they are only

illustrative in nature because it is difficult to clearly visualize all

situations and circumstances in which a person may pray for
65

anticipatory bail. If a wise discretion is exercised by the

concerned judge, after consideration of entire material on record

then most of the grievances in favour of grant of or refusal of bail

will be taken care of. The legislature in its wisdom has entrusted

the power to exercise this jurisdiction only to the judges of the

superior courts. In consonance with the legislative intention we

should accept the fact that the discretion would be properly

exercised. In any event, the option of approaching the superior

court against the court of Sessions or the High Court is always

available.

126. Irrational and Indiscriminate arrest are gross violation of

human rights. In Joginder Kumar's case (supra), a three

Judge Bench of this Court has referred to the 3rd report of the

National Police Commission, in which it is mentioned that the

quality of arrests by the Police in India mentioned power of arrest

as one of the chief sources of corruption in the police. The report

suggested that, by and large, nearly 60% of the arrests were

either unnecessary or unjustified and that such unjustified

police action accounted for 43.2% of the expenditure of the jails.
66

127. Personal liberty is a very precious fundamental right and it

should be curtailed only when it becomes imperative according to

the peculiar facts and circumstances of the case.

128 In case, the State consider the following suggestions in

proper perspective then perhaps it may not be necessary to

curtail the personal liberty of the accused in a routine

manner. These suggestions are only illustrative and not

exhaustive.

1) Direct the accused to join investigation and only
when the accused does not cooperate with the
investigating agency, then only the accused be
arrested.

2) Seize either the passport or such other related
documents, such as, the title deeds of properties
or the Fixed Deposit Receipts/Share Certificates
of the accused.

3) Direct the accused to execute bonds;

4) The accused may be directed to furnish sureties
of number of persons which according to the
prosecution are necessary in view of the facts of
the particular case.

5) The accused be directed to furnish undertaking
that he would not visit the place where the
witnesses reside so that the possibility of
tampering of evidence or otherwise influencing
the course of justice can be avoided.

6) Bank accounts be frozen for small duration
during investigation.
67

129) In case the arrest is imperative, according to the facts of

the case, in that event, the arresting officer must clearly record

the reasons for the arrest of the accused before the arrest in the

case diary, but in exceptional cases where it becomes imperative

to arrest the accused immediately, the reasons be recorded in the

case diary immediately after the arrest is made without loss of

any time so that the court has an opportunity to properly

consider the case for grant or refusal of bail in the light of

reasons recorded by the arresting officer.

130. Exercise of jurisdiction under section 438 of Cr.P.C. is

extremely important judicial function of a judge and must be

entrusted to judicial officers with some experience and good

track record. Both individual and society have vital interest in

orders passed by the courts in anticipatory bail applications.

131. It is imperative for the High Courts through its judicial

academies to periodically organize workshops, symposiums,

seminars and lectures by the experts to sensitize judicial officers,

police officers and investigating officers so that they can properly

comprehend the importance of personal liberty vis-`-vis social
68

interests. They must learn to maintain fine balance between the

personal liberty and the social interests.

132. The performance of the judicial officers must be periodically

evaluated on the basis of the cases decided by them. In case,

they have not been able to maintain balance between personal

liberty and societal interests, the lacunae must be pointed out to

them and they may be asked to take corrective measures in

future. Ultimately, the entire discretion of grant or refusal of bail

has to be left to the judicial officers and all concerned must

ensure that grant or refusal of bail is considered basically on the

facts and circumstances of each case.

133. In our considered view, the Constitution Bench in Sibbia's

case (supra) has comprehensively dealt with almost all aspects

of the concept of anticipatory bail under section 438 Cr.P.C. A

number of judgments have been referred to by the learned

counsel for the parties consisting of Benches of smaller strength

where the courts have observed that the anticipatory bail should

be of limited duration only and ordinarily on expiry of that

duration or standard duration, the court granting the

anticipatory bail should leave it to the regular court to deal with
69

the matter. This view is clearly contrary to the view taken by the

Constitution Bench in Sibbia's case (supra). In the preceding

paragraphs, it is clearly spelt out that no limitation has been

envisaged by the Legislature under section 438 Cr.P.C. The

Constitution Bench has aptly observed that "we see no valid

reason for rewriting section 438 with a view, not to expanding

the scope and ambit of the discretion conferred on the High

Court or the Court of Session but, for the purpose of limiting it".

134. In view of the clear declaration of law laid down by the

Constitution Bench in Sibbia's case (supra), it would not be

proper to limit the life of anticipatory bail. When the court

observed that the anticipatory bail is for limited duration and

thereafter the accused should apply to the regular court for bail,

that means the life of section 438 Cr.P.C. would come to an end

after that limited duration. This limitation has not been

envisaged by the legislature. The Constitution Bench in

Sibbia's case (supra) clearly observed that it is not necessary to

re-write section 438 Cr.P.C. Therefore, in view of the clear

declaration of the law by the Constitution Bench, the life of the

order under section 438 Cr.P.C. granting bail cannot be

curtailed.
70

135. The ratio of the judgment of the Constitution Bench in

Sibbia's case (supra) perhaps was not brought to the notice of

their Lordships who had decided the cases of Salauddin

Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v.

State and Another, Adri Dharan Das v. State of West Bengal

and Sunita Devi v. State of Bihar and Another (supra).

136. In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1

SCC 632, a two-Judge Bench of this Court observed "the

power exercisable under section 438 Cr.P.C. is somewhat

extraordinary in character and it should be exercised only in

exceptional cases. This approach is contrary to the legislative

intention and the Constitution Bench's decision in Sibbia's

case (supra).

137. We deem it appropriate to reiterate and assert that

discretion vested in the court in all matters should be

exercised with care and circumspection depending upon the

facts and circumstances justifying its exercise. Similarly, the

discretion vested with the court under section 438 Cr.P.C.

should also be exercised with caution and prudence. It is

unnecessary to travel beyond it and subject to the wide power
71

and discretion conferred by the legislature to a rigorous code

of self-imposed limitations.

138. The judgments and orders mentioned in paras 135 and

136 are clearly contrary to the law declared by the

Constitution Bench of this Court in Sibbia's case (supra).

These judgments and orders are also contrary to the legislative

intention. The Court would not be justified in re-writing

section 438 Cr.P.C.

139. Now we deem it imperative to examine the issue of per

incuriam raised by the learned counsel for the parties. In

Young v. Bristol Aeroplane Company Limited (1994) All ER

293 the House of Lords observed that `Incuria' literally means

`carelessness'. In practice per incuriam appears to mean per

ignoratium. English courts have developed this principle in

relaxation of the rule of stare decisis. The `quotable in law' is

avoided and ignored if it is rendered, `in ignoratium of a statute

or other binding authority. The same has been accepted,

approved and adopted by this court while interpreting Article

141 of the Constitution which embodies the doctrine of

precedents as a matter of law.
72

"......... In Halsbury's Laws of England (4th Edn.)
Vol. 26: Judgment and Orders: Judicial Decisions as
Authorities (pp. 297-98, para 578) per incuriam has
been elucidated as under:
"A decision is given per incuriam when
the court has acted in ignorance of a
previous decision of its own or of a court
of coordinate jurisdiction which covered
the case before it, in which case it must
decide which case to follow (Young v.
Bristol Aeroplane Co. Ltd., 1944 KB 718
at 729 : (1944) 2 All ER 293 at 300.

In Huddersfield Police Authority v.
Watson, 1947 KB 842 : (1947) 2 All ER
193.); or when it has acted in ignorance
of a House of Lords decision, in which
case it must follow that decision; or when
the decision is given in ignorance of the
terms of a statute or rule having
statutory force."

140. Lord Godard, C.J. in Huddersfield Police Authority v.

Watson (1947) 2 All ER 193 observed that where a case or

statute had not been brought to the court's attention and the

court gave the decision in ignorance or forgetfulness of the

existence of the case or statute, it would be a decision

rendered in per incuriam.

141. This court in Government of A.P. and Another v. B.

Satyanarayana Rao (dead) by LRs. and Others (2000) 4

SCC 262 observed as under:
73

"The rule of per incuriam can be applied where a
court omits to consider a binding precedent of the
same court or the superior court rendered on the
same issue or where a court omits to consider any
statute while deciding that issue."

142. In a Constitution Bench judgment of this Court in Union

of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice

Pathak observed as under:

"The doctrine of binding precedent has the merit of
promoting a certainty and consistency in judicial
decisions, and enables an organic development of
the law, besides providing assurance to the
individual as to the consequence of transactions
forming part of his daily affairs. And, therefore, the
need for a clear and consistent enunciation of legal
principle in the decisions of a court."

143. In Thota Sesharathamma and another v. Thota

Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a

two Judge Bench of this Court held that the three Judge

Bench decision in the case of Mst. Karmi v. Amru (1972) 4

SCC 86 was per incuriam and observed as under:

"...It is a short judgment without adverting to
any provisions of Section 14 (1) or 14(2) of the Act.
The judgment neither makes any mention of any
argument raised in this regard nor there is any
mention of the earlier decision in Badri Pershad v.
Smt. Kanso Devi. The decision in Mst. Karmi cannot
be considered as an authority on the ambit and
scope of Section 14(1) and (2) of the Act."
74

144. In R. Thiruvirkolam v. Presiding Officer and

Another (1997) 1 SCC 9 a two Judge Bench of this Court

observed that the question is whether it was bound to accept

the decision rendered in Gujarat Steel Tubes Ltd. v.

Mazdoor Sabha (1980) 2 SCC 593, which was not in

conformity with the decision of a Constitution Bench in P.H.

Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J.

speaking for the court observed as under:

"With great respect, we must say that the
above-quoted observations in Gujarat Steel at P. 215
are not in line with the decision in Kalyani which
was binding or with D.C. Roy to which the learned
Judge, Krishna Iyer, J. was a party. It also does not
match with the underlying juristic principle
discussed in Wade. For the reasons, we are bound
to follow the Constitution Bench decision in
Kalyani, which is the binding authority on the
point."

145. In Bharat Petroleum Corporation Ltd. v. Mumbai

Shramik Sangra and others (2001) 4 SCC 448 a

Constitution Bench of this Court ruled that a decision of a

Constitution Bench of this Court binds a Bench of two learned

Judges of this Court and that judicial discipline obliges them

to follow it, regardless of their doubts about its correctness.
75

146. A Constitution Bench of this Court in Central Board of

Dawoodi Bohra Community v. State of Maharashtra

(2005) 2 SCC 673 has observed that the law laid down by this

Court in a decision delivered by a Bench of larger strength is

binding on any subsequent Bench of lesser or coequal

strength.

147. A three-Judge Bench of this court in Official Liquidator

v. Dayanand and Others (2008) 10 SCC 1 again reiterated

the clear position of law that by virtue of Article 141 of the

Constitution, the judgment of the Constitution Bench in State

of Karnataka and Others v. Umadevi (3) and Others (2006)

4 SCC 1 is binding on all courts including this court till the

same is overruled by a larger Bench. The ratio of the

Constitution Bench has to be followed by Benches of lesser

strength. In para 90, the court observed as under:-

"We are distressed to note that despite several
pronouncements on the subject, there is substantial
increase in the number of cases involving violation
of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts
refuse to follow and accept the verdict and law laid
down by coordinate and even larger Benches by
citing minor difference in the facts as the ground for
doing so. Therefore, it has become necessary to
reiterate that disrespect to the constitutional ethos
and breach of discipline have grave impact on the
76

credibility of judicial institution and encourages
chance litigation. It must be remembered that
predictability and certainty is an important
hallmark of judicial jurisprudence developed in this
country in the last six decades and increase in the
frequency of conflicting judgments of the superior
judiciary will do incalculable harm to the system
inasmuch as the courts at the grass roots will not
be able to decide as to which of the judgments lay
down the correct law and which one should be
followed."

148. In Subhash Chandra and Another v. Delhi

Subordinate Services Selection Board and Others (2009)

15 SCC 458, this court again reiterated the settled legal

position that Benches of lesser strength are bound by the

judgments of the Constitution Bench and any Bench of

smaller strength taking contrary view is per incuriam. The

court in para 110 observed as under:-

"Should we consider S. Pushpa v.
Sivachanmugavelu (2005) 3 SCC 1 to be an obiter
following the said decision is the question which
arises herein. We think we should. The decisions
referred to hereinbefore clearly suggest that we are
bound by a Constitution Bench decision. We have
referred to two Constitution Bench decisions,
namely, Marri Chandra Shekhar Rao v. Seth G.S.
Medical College (1990) 3 SCC 139 and E.V.
Chinnaiah v. State of A.P. (2005) 1 SCC 394.
Marri Chandra Shekhar Rao (supra) had been
followed by this Court in a large number of
decisions including the three-Judge Bench
decisions. S. Pushpa (supra) therefore, could not
have ignored either Marri Chandra Shekhar Rao
77

(supra) or other decisions following the same only
on the basis of an administrative circular issued or
otherwise and more so when the constitutional
scheme as contained in clause (1) of Articles 341
and 342 of the Constitution of India putting the
State and Union Territory in the same bracket.
Following Official Liquidator v. Dayanand and
Others (2008) 10 SCC 1 therefore, we are of the
opinion that the dicta in S. Pushpa (supra) is an
obiter and does not lay down any binding ratio."